In today’s blog post we republish an article from the book written by Senior Counsel, Children’s Rights Division, Michael Garcia Bochenek who highlights the widespread, poorly documented and often abused reality of children locked up in prisons around the world. This article was first published on the Human Rights Watch website here.

Michael Garcia Bochenek – Senior Counsel, Children’s Rights Division

Shortly after 16-year-old T.W. was booked into Florida’s Polk County Jail in February 2012, his three cellmates punched him, whipped him with wet towels, and nearly strangled him with a pillowcase.

They then urinated on him, sprayed his face with cleaning fluid, and stripped him naked before wrapping a sheet around his neck, tying the other end around the window bar, and pulling so tight he lost consciousness. They repeated this attack three times over the course of several hours without jail guards on regular rounds even noticing, a federal magistrate judge found.

Around the world, children languish behind bars, sometimes for protracted periods. In many cases, as with T.W., they face brutal and inhumane conditions.

Record-keeping

The lack of record-keeping and a wide array of institutions means that the number of children held worldwide in such environments is not known.

The United Nations children’s fund, UNICEF, has estimated that more than 1 million children are behind bars around the world. Many are held in decrepit, abusive, and demeaning conditions, deprived of education, access to meaningful activities, and regular contact with the outside world.

“UNICEF has estimated that more than 1 million children are behind bars around the world”

Many of these children­—and adults who were convicted of crimes committed when they were children—have received excessive or disproportionate sentences that violate international law, which requires that imprisonment of children be in “conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.”

Others are held for acts that should not be crimes at all, such as skipping school, running away from home, having consensual sex, and seeking or having an abortion. Some have never been tried for their alleged crimes; others are tried as if they were adults and, when convicted, sent to serve time in adult prisons.

Migrant children are also routinely held in immigration detention, contrary to international standards. Children with disabilities and others may be institutionalized in the guise of protection.

A UN study expected to be finalized in 2017 promises to put international focus on the detention of children and hopefully result in more systematic monitoring of abusive practices, increased compliance with international standards, and a dramatic reduction in the number of children deprived of their liberty.

But governments need not wait for this report; they can and should act now to establish genuine alternatives to detention and ensure that those children who must be detained are held in humane conditions and benefit from schooling, health services, recreational opportunities, and contact with the outside world.

Detention and Incarceration in Response to Crime

Most countries keep no accurate records of the numbers of children who are locked up for breaking the law.

Furthermore, getting a sense of the numbers of children behind bars is complicated by the fact that some governments hold children in several kinds of facilities, including adult jails and prisons as well as juvenile detention centers.

“…the United States leads the industrialized world in the number and percentage of children it locks up in juvenile detention facilities”

We know that the United States leads the industrialized world in the number and percentage of children it locks up in juvenile detention facilities, with over 60,000 children in such facilities in 2011, according to data compiled by the Annie E. Casey Foundation, which works on juvenile justice and other children’s rights issues.

The US also sends an extraordinary number of children to adult jails and prisons—more than 95,000 in 2011, Human Rights Watch and the American Civil Liberties Union estimated—with few opportunities for meaningful education or rehabilitation.

Whatever the numbers, there are several reasons why many children around the world should not be locked up.

First, the Convention on the Rights of the Child requires that locking up children on juvenile or criminal charges be a matter of last resort. Too often it’s the first, or even only, resort; there simply may be no alternatives in law or practice.

Second, children are too often charged and held for acts that shouldn’t be criminal. For instance, street children are frequently presumed to be guilty of wrongdoing and arrested on vague charges—if they are charged at all, as Human Rights Watch has found in Cambodia and Uganda, among other countries.

Disobeying parents

Many countries place children in detention for disobeying their parents or for other “status offenses,” acts that would not be crimes if committed by an adult. A Texas Public Policy Foundation study found that in the US in 2010, over 6,000 children were detained for acts such as truancy, running away from home, “incorrigibility,” underage drinking, and curfew violations.

Girls may face specific restrictions on their freedom of movement, enforced by criminal law.

In Saudi Arabia, for example, girls as well as adult women may be jailed, imprisoned, and flogged for the ill-defined offenses of “seclusion” and “mingling,” which one official described to Human Rights Watch as a girl or woman “being in an apartment by herself, or with a group of others, or sitting in a place where it is not natural for her to be.”

Children in some countries, including Peru and some Mexican and US states, may face criminal charges for consensual sexual conduct—in the case of the US, particularly if the partner is of the same sex.

Anti-prostitution laws in many countries mean that children may also be arrested, imprisoned, and detained when they engage in survival sex (the exchange of sex for food, shelter, or money in order to meet basic needs). Girls who seek or procure an abortion may face criminal charges—even in cases where the pregnancy was the result of rape—in Chile, El Salvador, Ecuador, Peru, and the Philippines, among other countries.

“…at least 160 individuals were on death row in Iran for crimes they were found to have committed when they were younger than 18”

Third, children may be imprisoned under sentences that are impermissible under international law. International law flatly prohibits sentences of death (as well as life sentences that do not allow for the possibility of release) for crimes committed under the age of 18.

Nevertheless, at least 160 individuals were on death row in Iran for crimes they were found to have committed when they were younger than 18, the UN secretary-general reported in February 2015.

Since 2010, juvenile offenders have been sentenced to death in Egypt, Iran, Maldives, Pakistan, Saudi Arabia, Sri Lanka, Sudan, and Yemen. In Nigeria, some convicted before 2010 continue to be held under sentence of death.

International law

International law also requires that children be detained or incarcerated for the shortest appropriate period of time, and they must receive sentences proportionate to the circumstances and gravity of their offenses, as well as their own individual circumstances and needs.

Their sentences must be subject to early, regular, and meaningful review for the purpose of conditional release or parole. Nevertheless, children may receive life sentences in 73 countries, including the US and 49 of the 53 states in the Commonwealth of Nations, a 2015 study by the Child Rights International Network (CRIN) found.

Fourth, children from minority groups are frequently disproportionately subject to arrest and detention.

In fact, the disparities between their treatment and that of children from groups that represent the majority may increase at every stage of the process, from arrest to bail determinations to sentencing to parole decisions, as studies of Aboriginal children in Australia’s juvenile justice system and of minority children in the United States have found.

“…children may receive life sentences in 73 countries, including the US and 49 of the 53 states in the Commonwealth of Nations”

Fifth, prosecuting children as adults poses additional problems. Not every country has established a juvenile justice system, despite the requirement in international law to do so. As Human Rights Watch found in Zambia, for example, the absence of a dedicated juvenile justice system can mean that children may wait for months or even years for their cases to be concluded.

Of those states that do have a juvenile justice system, some nevertheless treat older children as if they were adults.

This may be done systematically, by setting an age lower than 18 for the jurisdiction of the ordinary criminal courts, as is the case in Cuba, Ethiopia, Jamaica, Hong Kong, the Philippines, Ukraine, the Australian state of Queensland, and New York State, among other jurisdictions.

It may also be done arbitrarily, such as when judges decide to treat children as adults if they show signs of puberty, as is done in Saudi Arabia and other countries in the Middle East. In addition, in the US, every state and the federal criminal justice system allow some children to be prosecuted in the ordinary criminal courts, depending on their age and the seriousness of the offense with which they are charged.

Brazil and India were at time of writing each considering lowering the age of criminal majority, the minimum age for trial in the ordinary criminal courts, for some crimes. If these proposals are enacted in their current form, children ages 16 and over who are accused of serious crimes will be prosecuted in adult courts.

To read the full article on Human Rights Watch World Report 2016 site click here. You can also follow Michael Garcia Bochenek on Twitter @MichaelBochenek

HUMAN RIGHTS WATCH is one of the world’s leading independent organizations dedicated to defending and protecting human rights, and operates in more than ninety countries. Its annual World Report is the most probing review of human rights developments available anywhere.

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